NO. COA04-88

STATE OF NORTH CAROLINA
                            Onslow County
    v.                        No. 02 CRS 60681           &nb sp;                
                             02 CRS 60683
JAMES WILLIAM MCDOUGLE,
        Defendant.

    Appeal by defendant from judgments entered 1 August 2003 by Judge Benjamin G. Alford in Onslow County Superior Court. Heard in the Court of Appeals 13 October 2004.

     Attorney General Roy Cooper, by Special Deputy Attorney General Buren R. Shields, III , for the State.

    McAfee Law, P.A., by Robert J. McAfee, for defendant- appellant.

    GEER, Judge.

    Defendant James William McDougle appeals from convictions of robbery with a dangerous weapon and conspiracy to commit robbery. On appeal, he argues primarily that the trial court erred in denying his motions to suppress (1) the seizure of a gun from the car in which he was riding and (2) statements that he made to the police. Because the officers had reasonable articulable suspicion to stop the car and the gun was in plain view and because the record contains competent evidence that defendant voluntarily made his statements to the police, we hold that the trial court properly denied the motions to suppress. We also conclude that defendant's remaining contentions on appeal are without merit.

Facts

    The State's evidence tended to show the following. On 15 October 2002, three men committed a robbery of Communication Specialists, a cellular phone store located in Jacksonville, North Carolina. The robbers used a gun to force the employees to the floor. They took a bank deposit bag containing $104.85, a purse belonging to employee Margaret Conway containing her personal checks, and a desk organizer. Ms. Conway recognized one of the robbers; earlier that week, he had entered the store, told Conway that he lived up the street, and inquired about different types of pagers. Later, on the same day as the robbery, Ms. Conway was notified that someone had cashed one of her stolen personal checks. The cancelled personal check was made out to a "David Hearst" for $300.00.
    Meredith Arroyo, who lived near Communication Specialists, reported to police investigators that she saw David Hearst and two other black males walking toward the store on the afternoon of the robbery. Ms. Arroyo knew David Hearst because his girlfriend lived in the house next door. Shortly after seeing the three men walking up the street, Ms. Arroyo saw the same three men running in the opposite direction.
    An informant came to the police station and told the officers she had intimate knowledge of the robbery. After requesting confidentiality because she had a relationship with one of the robbers, she told the police details of the robbery and identifiedDavid Hearst, Earl Christopher Williams, and defendant as the three men who had committed it.
    The day after the robbery, David Hearst surrendered to the Jacksonville Police Department. The clothing he was wearing matched the description of one of the robbery suspects. After waiving his Miranda rights, Mr. Hearst admitted to Sergeant Campbell that he committed the robbery and identified defendant and Williams as the other two men involved. A search of Mr. Hearst's pockets revealed a slip of paper with the phone numbers for defendant and Williams. Mr. Hearst told the police that defendant could be found at the Morton Street Apartments.
    Officers set up surveillance at the Morton Street Apartments. On the afternoon of 17 October 2002, Detective Michael Muni saw a man who matched defendant's description entering an automobile. Sergeant Campbell instructed Detective Muni to stop the vehicle. Once the car was stopped, the occupants got out. When Detective Muni and a second officer approached the car, they saw a .45 caliber gun lying between the left and right backseat. A search of defendant revealed three .45 caliber bullets in his pocket. When officers asked defendant for his name, he falsely responded, "James Williams." A sergeant at the scene, however, identified him as "James McDougle" and directed that he be taken to the police department for questioning. At the police station, defendant was read his Miranda rights from a printed waiver form. After orally waiving those rights, he answered the detective's questions. Defendant admitted that he owned the gun in the car, but suggestedthat Mr. Hearst had stolen it for use in the robbery. Defendant did not respond when he was asked how he knew Mr. Hearst had been involved in the robbery and how defendant had regained possession of the gun.
    At trial, defendant offered evidence that tended to show that he and Williams gave Hearst a ride on the day in question. Later that afternoon, defendant and Williams drove to the Piggly Wiggly where they saw Hearst with two other black men. While at the store, Hearst wanted to buy drugs from Williams, but had to cash a check in order to pay for them. Defendant and Williams followed Hearst to the bank to cash the check and then gave him a ride back. During this time, Hearst never said anything about the robbery. Defendant and Williams then went to take a woman and her daughter to a doctor's appointment at 2:15 in the afternoon. Williams testified that he gave defendant's gun to Hearst, without defendant's knowledge, because Hearst thought someone was trying to kill him.

____________________

    Defendant was charged with (1) robbery with a dangerous weapon, in violation of N.C. Gen. Stat. § 14-87 (2003); (2) conspiracy to commit robbery with a dangerous weapon; (3) assault on a female; and (4) possession of a firearm by a felon. Prior to trial, defendant filed a motion to suppress evidence of the gun and a motion to suppress the statements defendant made while at the police station. These motions to suppress were denied. Defendant entered a plea of guilty to the charge of possession of a firearmby a felon. Following the State's presentation of its case, the trial judge dismissed the charge of assault on a female.
    A jury found defendant guilty of both robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The trial court sentenced defendant to 117 to 150 months imprisonment on the armed robbery charge, to a consecutive sentence of 46 to 65 months imprisonment on the conspiracy charge, and to a consecutive sentence of 16 to 20 months imprisonment on the possession of a firearm charge. Defendant timely appealed.

    Defendant first assigns error to the trial court's denial of his two motions to suppress. Ordinarily, when this Court reviews a ruling on a motion to suppress, the findings of fact are binding if supported by competent evidence and the conclusions of law are upheld if they are "legally correct, reflecting a correct application of applicable legal principles to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).
    In this case, the record does not reveal that the trial court made any specific findings of fact. "If there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific findings of fact, although it is always the better practice to find all facts upon which the admissibility of the evidence depends." State v. Vick, 341 N.C. 569, 580, 461 S.E.2d 655, 661 (1995). During the hearing on the motions to suppress in this case, only the State presented evidence. In that event, "the necessary findings are implied fromthe admission" of the evidence that is the subject of the motion to suppress, and we review the trial court's decision to see if the evidence supports its conclusion that the motions to suppress should be denied. Id.
    A.    Motion to Suppress the Gun
    With respect to the gun recovered from the car in which the defendant was a passenger, defendant argues that both the stop and the search of the vehicle were unreasonable. We disagree.
    In order for officers to conduct an investigatory stop, they must have "'a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" State v. Steen, 352 N.C. 227, 238, 536 S.E.2d 1, 8 (2000) (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362, 99 S. Ct. 2637, 2641 (1979)), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997, 121 S. Ct. 1131 (2001). A review of the record shows that officers had the required reasonable articulable suspicion to conduct the stop of the automobile in which defendant was riding. Because David Hearst had already confessed to the robbery and identified defendant as one of the other two robbers _ as had a confidential informant _ the officers had reasonable articulable suspicion that defendant had committed an armed robbery. See State v. Young, 148 N.C. App. 462, 467-68, 559 S.E.2d 814, 819 (holding that there was a reasonable articulable suspicion to stop the defendant for committing a robbery where an anonymous informant told the police that the defendant committed the crime and the officer who made the stop could verify that the defendant matched the description of theinformant and other witnesses to the crime), appeal dismissed and disc. review denied, 355 N.C. 500, 564 S.E.2d 233 (2002). Moreover, the investigating officers were aware that defendant had outstanding arrest warrants. The stop was, therefore, justified.
    Defendant argues, however, that the officers who made the stop did not have personal knowledge of the facts giving rise to a reasonable suspicion that defendant had been engaged in criminal activity. As the State points out, Sergeant Campbell possessed the necessary knowledge and he gave the order to stop the car based on the facts that he knew. As this Court has previously held, it is immaterial whether the officer making the stop has the required knowledge; "[t]he true focus of the inquiry . . . should be upon the knowledge of the officer issuing the directions for the detention or arrest of a suspect." State v. Whitehead, 42 N.C. App. 506, 511-12, 257 S.E.2d 131, 134, appeal dismissed and disc. review denied, 298 N.C. 572, 261 S.E.2d 127 (1979).
    Defendant also argues that the search of the car was unreasonable because there was no probable cause or exigency that justified the search. We need not address that issue since only the seizure of the gun is challenged and the gun was sitting in plain view. "In North Carolina, a seizure is lawful under [the plain view] doctrine when the officer was in a place he or she had a right to be at the time the evidence was discovered, it is immediately obvious that the items observed are evidence of a crime, and the discovery is inadvertent." State v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 487 (2001), cert. denied, 535 U.S. 940, 152L. Ed. 2d 231, 122 S. Ct. 1323 (2002). In this case, as the officers approached the vehicle, Officer Nixon spotted a weapon underneath an armrest in the backseat. Because the officers saw the weapon from the outside of the vehicle where they had a right to be, it was in plain view. Id. The trial court did not err in denying this motion to suppress.
    B.    Motion to Suppress Statements
    Defendant next assigns error to the trial court's denial of his motion to suppress statements he made to police officers. Defendant claims he never knowingly and voluntarily waived his Miranda rights because he was handcuffed during questioning, never signed the waiver form, and was acting in a belligerent manner while being questioned.
    In his brief, defendant admits that he did not object to the use of these statements at trial. This issue has not, therefore, been properly preserved for review. State v. Golphin, 352 N.C. 364, 393, 533 S.E.2d 168, 191 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1379 (2001). Although defendant urges this Court to review the admission of these statements for plain error, defendant did not specifically assign the admission of these statements as "plain error" in his assignments of error. "[W]here a defendant fails to assert plain error in his assignments of error, as defendant has failed to do in this case, he has waived even plain error review." State v. Gary, 348 N.C. 510, 518, 501 S.E.2d 57, 63 (1998) (citing N.C.R. App. P. 10(c)(4)). Accordingly, defendant has waived review of this issue.    Even in the absence of waiver, a review of the record reveals that defendant's statements were voluntarily and properly admitted by the trial court. Defendant's statements were made to Detective Condry after the detective read defendant his rights from a printed Miranda waiver form while giving defendant a chance to read the form along with him. At the end of each segment of the waiver, Detective Condry asked defendant if he understood his rights, and each time defendant responded affirmatively. After the defendant was read all of his rights, he said he was willing to talk to Detective Condry without an attorney because "I didn't do nothing." While defendant never signed the printed waiver form, a signature is not required to voluntarily waive Miranda rights. State v. Monroe, 27 N.C. App. 405, 407, 219 S.E.2d 270, 271 (1975).

Motion to Compel Disclosure of Confidential Informant

    Defendant next assigns error to the trial court's denial of his motion to compel the State to identify the confidential informant. The State is allowed to withhold the identity of a confidential informant unless disclosure of the informant's identity is relevant and helpful to the defense of an accused or is essential to a fair determination of the charges. State v. Gaither, 148 N.C. App. 534, 540, 559 S.E.2d 212, 216 (2002). Whether the informant's identity should be revealed is determined by balancing the public's interest in having criminal activity reported against the defendant's right to present his case, taking into consideration the crime charged, the possible defenses, thesignificance of the informer's statements, and other relevant factors. Id.
    Based upon the evidence presented in this case, we conclude that the trial court did not err in failing to require the State to disclose the informant's name. Although defendant has speculated that perhaps the informant was an accessory in the crime or concocted the story along with Hearst, defendant has not pointed to any concrete reason that, under the particular circumstances of this case, defendant needed the informant's identity in order to effectively prepare a defense.
    The informant did not play a significant role in this case. There was ample other evidence that enabled the police to link defendant to the robbery and later established his guilt. In addition to the informant, David Hearst gave the police a detailed account of the robbery, named defendant as one of the robbers, and gave possible locations where defendant could be found. Upon apprehending defendant, the police seized defendant's gun, which was identified as the one used in the robbery. This evidence is enough to establish defendant's guilt. The fact that "the evidence independent of the informer's testimony establishes the accused's guilt" weighs against disclosure. State v. Newkirk, 73 N.C. App. 83, 86, 325 S.E.2d 518, 520-21, disc. review denied, 313 N.C. 608, 332 S.E.2d 81 (1985). Consequently, considering the independent evidence against the defendant and the fact that defendant made no concrete showing why he needed the informant's identity, this assignment of error is overruled.

Hearsay

    Defendant next argues that the trial court erred in allowing Detective Nordstrom and Detective Condry to testify regarding what David Hearst told them during his interrogation on the grounds that the testimony constituted inadmissible hearsay. Defendant did not object to the admission of these statements at trial, but he assigns them as plain error. Plain error is "a fundamental error, something so basic, so prejudicial" that it results in a substantial miscarriage of justice. State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996).

    "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). Generally, hearsay statements are not admissible in court. N.C. Gen. Stat. § 8C-1, Rule 802 (2003). When, however, "evidence of such statements . . . is offered for a proper purpose other than to prove the truth of the matter asserted, it is not hearsay and is admissible." State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990).

    In North Carolina, it is well established that "[a] prior consistent statement of a witness is admissible to corroborate the testimony of the witness whether or not the witness has been impeached," even though the statement might otherwise be hearsay. State v. Jones, 329 N.C. 254, 257, 404 S.E.2d 835, 836 (1991). "'In order to be admissible as corroborative evidence, a witness' prior consistent statements merely must tend to add weight orcredibility to the witness' testimony. Further, it is well established that such corroborative evidence may contain new or additional facts when it tends to strengthen and add credibility to the testimony which it corroborates.'" State v. Walters, 357 N.C. 68, 89, 588 S.E.2d 344, 356 (quoting State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993)), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003). Since the testimony of Detectives Nordstrom and Condry corroborated Hearst's trial testimony, it was admissible.

Ineffective Assistance of Counsel

    Defendant's final assignment of error asserts that his trial counsel made thirteen different errors that, either individually or collectively, amounted to ineffective assistance of counsel. Ordinarily, claims of ineffective assistance of counsel ("IAC") are most properly raised in a motion for appropriate relief. Our Supreme Court has held that an IAC claim "brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002). As the Supreme Court explained, "[t]his rule is consistent with the general principle that, on direct appeal, the reviewing court ordinarily limits its review to material included in 'the record on appeal and the verbatim transcript of proceedings, if one isdesignated.'" Id., 557 S.E.2d at 524-25 (quoting N.C.R. App. P. 9(a)).
    Our review of the record reveals that defendant's IAC claims cannot be decided without further factual development. Most of defendant's objections to his trial counsel's performance concern subjective decisions made by the attorney that we cannot examine based upon the record alone. See also Massaro v. United States, 538 U.S. 500, 504, 155 L. Ed. 2d 714, 720, 123 S. Ct. 1690, 1694 (2003) ("[I]n most cases [a post-conviction proceeding] is preferable to direct appeal for deciding claims of effective- assistance.") Accordingly, we dismiss this assignment of error without prejudice to defendant's asserting it in a motion for appropriate relief. Fair, 354 N.C. at 167, 557 S.E.2d at 525 ("[S]hould the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent MAR proceeding.").

    No error in part; dismissed without prejudice in part.
    Judges CALABRIA and STEELMAN concur.
    Report per Rule 30(e).

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